Friendly Physician, P.C. v GEICO Ins. Co.

[*1] Friendly Physician, P.C. v GEICO Ins. Co. 2010 NY Slip Op 51772(U) [29 Misc 3d 129(A)] Decided on October 5, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1441 K C.

Friendly Physician, P.C. as Assignee of PANZIE SMITH, Respondent,

against

GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 19, 2007. The order denied defendant's motion to vacate a prior order of the same court (Robin D. Garson, J.), dated October 15, 2007, which had granted on default plaintiff's motion for summary judgment.

ORDERED that the order entered November 19, 2007 is reversed without costs, defendant's motion to vacate the October 15, 2007 order is granted, and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost a month after their stipulated due date, the Civil Court rejected defendant's papers and, by order dated October 15, 2007 (Robin D. Garson, J.), granted plaintiff's motion on default. In November 2007, defendant moved to vacate the October 15, 2007 order pursuant to CPLR 5015 (a) (1). By order entered November 19, 2007 (Peter Paul Sweeney, J.), the Civil Court denied defendant's motion without prejudice, stating that "[d]efendant is granted leave to submit a motion to reargue or renew before Judge Garson, who initially granted the judgment in dispute." The instant appeal by defendant ensued.

It is well settled that a party seeking to vacate an order granting summary judgment on default must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). In the exercise of its discretion, a court can accept a claim of law office failure as an excuse (see CPLR 2005), if the [*2]facts submitted in support thereof are in evidentiary form sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). The affirmations of the attorneys employed by the law firm representing defendant satisfied these criteria.

Defendant also demonstrated a meritorious defense to the action. The affidavit of an employee of defendant's claims department showed that defendant had timely mailed the denial of claim forms in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The employee's affidavit also established that the claims were denied based upon the annexed verified peer review report and affirmed independent medical examination reports, which concluded that there was a lack of medical necessity for the services rendered. Consequently, defendant set forth a triable issue of fact sufficient to defeat plaintiff's motion for summary judgment.

We note that, contrary to the Civil Court's direction, relief from an order granted upon default should be sought by means of a motion pursuant to CPLR 5015, not by a motion to renew or reargue (see e.g. Raciti v Sands Point Nursing Home, 54 AD3d 1014 [2008]).

Accordingly, the order is reversed, defendant's motion to vacate the October 15, 2007 order is granted and plaintiff's motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 05, 2010